Borel v. Borel

• Decision Date: 06 October 1993
• Docket Number: No. 92-1447,92-1447
• Citation: 624 So.2d 1279
• Parties: Joseph Daniel BOREL, Plaintiff-Appellee, v. Irble Irene BOREL, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1279

624 So.2d 1279

Joseph Daniel BOREL, Plaintiff-Appellee, v. Irble Irene BOREL, Defendant-Appellant.

No. 92-1447.

Court of Appeal of Louisiana, Third Circuit.

Oct. 6, 1993.

Robert William Collings, Norman Lamar Williams, Lake Charles, for Joseph Daniel Borel.

Randy J. Fuerst, Lake Charles, for Irble Irene Borel.

Before GUIDRY, THIBODEAUX and COOKS, JJ.

COOKS, Judge.

On appeal, Mrs. Borel questions the trial court's divorce judgment granted pursuant to Louisiana Civil Code Article 102. She urges the judgment is procedurally defective for two reasons: First, she complains that all the issues raised in the pleadings were not joined. Second, she contends her motion for continuance filed two days before the hearing should have been granted. While she attacks the judgment from a procedural vantage point, the backdrop of her assignments are laced with a persistent plea for equity and justice. Chronologically, she walks this court through the pleadings noting the repeated continuances granted in the case and the lower court's alleged failure to expeditiously entertain an appeal taken from a hearing officer's recommendation concerning the amount of alimony pendente lite to which she is entitled. ¹ As a consequence, Mrs. Borel asserts she has been placed in an unfair position because in effect the court's failure to enter a formal pendente lite judgment deprives her of an alleged right, during the pendency of this appeal, to receive continued alimony payments. She points out that other similarly situated spouses file suspensive appeals with this court following formal rendition of divorce judgments; and, as a result, their alimony pendente lite payments are extended beyond the cutoff period which ordinarily ends on the date of divorce. She contends this alleged disparity in treatment persisted when the trial judge refused her request for a continuance or to fix permanent alimony payments at the scheduled show cause hearing. We disagree with these contentions and affirm the judgment.

PROCEDURAL HISTORY

On March 13, 1992, Mr. Borel filed a petition for divorce pursuant to Louisiana Civil Code Article 102. Mrs. Borel answered the suit and filed a reconventional demand for, among other things, a divorce based on the same provision and alimony pendente lite. A hearing on the alimony issue was fixed for April 14, 1992. The record does not reflect why this hearing was continued to May 13, 1992. However, the subsequent fixing (on motion of Mrs. Borel's counsel) was continued to June 4, 1992. On this date a hearing officer recommended that Mr. Borel pay monthly alimony pendente lite to Mrs. Borel in the amount of Eight Hundred and Eighty Dollars ($880.00). Apparently, this recommendation was rejected. Mrs. Borel then motioned the court to conduct a hearing on the alimony issue which was fixed for July 21, 1992. Again, the record does not reflect why the scheduled hearing did not take place; but it was refixed for September 24, 1992. Unable to attend because of a conflict in schedule, Mr. Borel's attorney requested a continuance with opposing counsel's approval. Next, Mr. Borel initiated a rule for judgment of divorce praying that Mrs. Borel show cause why the 102 divorce should not be granted. This rule was assigned for hearing on October 15, 1992. Two days before the hearing, Mrs. Borel requested a continuance for medical reasons and filed a second motion seeking to fix for hearing on the same date the alimony pendente lite matter. According to the record both motions were granted by the trial judge. One day before the scheduled hearing, she also filed a supplemental and amending petition alleging Mr. Borel committed adultery.

Although the record contains a signed order purporting to continue the show cause hearing fixed for October 15th, the 102 divorce motion was heard on this date. Mrs. Borel's counsel initially sought to introduce, at the hearing, a note from Mrs. Borel's treating physician showing she was ill and required to keep an appointment on the same date at the physician's office. Apparently, the trial judge proceeded with the hearing noting the pleadings did not present a defense to the 102 divorce action. However, he granted Mrs. Borel's request for continuance on the other pending issues. The judgment specifically recites "all rights, if any, to all incidental matters presently pending, including, but not limited to, any claims for permanent alimony or increases in any alimony pendente lite, and partitioning of community property are herein reserved."

On November 3, 1992, Mrs. Borel filed a rule for permanent alimony which was set for November 17, 1992. On the same date, she suspensively appealed the divorce judgment. As evidenced by Exhibit B attached to Mrs. Borel's brief, a hearing on the matters continued from October 15, 1992 were heard and judgment was entered on January 29, 1993 awarding her alimony pendente lite effective from the date the reconventional petition was filed. This judgment states:

"with regard to the Rule for Permanent Alimony, no award of permanent alimony will be made at this time since the Judgment of Divorce is currently under a Suspensive Appeal. Therefore Temporary Alimony shall continue herein until further orders of the Court in the amount of $880.00 per month." (Emphasis Added.)

LAW AND ANALYSIS

Appellant expended considerable energy in brief arguing, if the judgment is allowed to stand, Mrs. Borel will suffer financially from the loss of alimony pendente lite payments during the pendency of this appeal. She contends this loss is not ordinarily experienced by other spouses who obtain judgments fixing such payments prior to the granting of a 102 divorce. Her plea for equal justice quickly dims on review of the January judgment which specifically fixes and reinstates Mrs. Borel's alimony pendente lite payments until further orders of the court. While the 102 judgment of divorce normally terminates alimony pendente lite payments from the date of its finality, the later judgment entered in this case (in part) is "prospective" in effect and maintainable until "further" future orders of the court. We interpret the judgment as granting alimony pendente lite during the pendency of this appeal and reserving the fixing of permanent alimony until the matter is finally resolved.

Further, we reject Mrs. Borel's argument that the trial judge committed a second injustice by not awarding permanent alimony while awaiting our review. Mrs. Borel filed a petition requesting a suspensive appeal from the 102 divorce judgment and "the effects of said judgment." Although Mrs. Borel is entitled to receive alimony pendente lite payments as a result of the second judgment mentioned, we specifically find her equity and justice arguments totally without merit. Additionally, we take opportunity to caution litigants, desiring to merely prolong their alimony pendente lite payments, that deliberate manipulation of our procedural law is not favored. If continued, such future practice may give rise to valid claims for frivolous appeal damages. Filing belated supplemental and amending pleadings, followed by an appeal to this court, motivated by the desire to delay final entry of a 102 divorce solely to preserve alimony pendente lite payments comes very close to abusing the judicial process.

Furthermore, we are not persuaded by Mrs. Borel's argument that the trial judge lacked authority to grant a 102 divorce in this case without first determining "fault" or considering her supplemental "adultery" allegation. As a result of this filing, she asserts all the issues were not joined on the day of the hearing. Louisiana Code of Civil Procedure clearly provides:

ARTICLE 1151

"A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Article 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party.

ARTICLE 1155

"The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein."

The delays for filing supplemental and amending petitions without leave of court elapsed. We have carefully reviewed the record for an order granting Mrs. Borel leave to file her supplemental and amending petition. No order was found. The trial judge did not abuse his discretion in refusing to consider a 103 claim for divorce raised for the first time one day prior to hearing. The ground alleged in the supplemental pleading was not properly "put before" him for consideration. Even if Mrs. Borel had secured leave of court to file this late submission, her amended attempt to convert and...